Kamstrup A/S

Patent Trials and Appeals Board

Sep 15, 2021

2021000182 (P.T.A.B. Sep. 15, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
16/427,836 05/31/2019 Søren Tønnes Nielsen KAMSP0110WOUSA 7139
23908 7590 09/15/2021
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
EXAMINER
EYASSU, MARRIT
ART UNIT PAPER NUMBER
2861
NOTIFICATION DATE DELIVERY MODE
09/15/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SØREN TØNNES NIELSEN, PETER SCHMIDT LAURSEN,
JENS LYKKE SØRENSEN, and SUNE HOVEROUST DUPONT
Appeal 2021-000182
Application 16/427,836
Technology Center 2800
Before JAMES C. HOUSEL, JEFFREY R. SNAY, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 23–42.2 Non-Final Act. 3, 6, 9, 13, 14.
We have jurisdiction under 35 U.S.C. § 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as “Kamstrup A/S.”
Appeal Br. 2.
2 The Examiner has objected to pending claim 29 as being dependent on a
rejected base claim, but would be allowable if rewritten in independent form.
Appeal 2021-000182
Application 16/427,836
2
We AFFIRM.
CLAIMED SUBJECT MATTER
Claim 23, reproduced below, is illustrative of the claimed subject
matter:
23. A device arranged to measure turbidity of a fluid
flowing in a flow tube, the device comprising:
a flow tube having a through-going opening for passage
of a fluid between an inlet and an outlet and a turbidity
measurement section between a first section end and a second
section end,
a first transducer arranged to transmit ultrasonic signals
through the fluid in the turbidity measurement section so as to
provide a first ultrasonic wave between the first and second
section ends,
a receiver transducer arranged for receiving ultrasonic
signals scattered on particles in the fluid flowing through the
turbidity measurement section, wherein the receiver transducer
has a receiving surface which is parallel to a propagation
direction of the first ultrasonic wave, and
a control circuit connected to the first transducer and the
receiver transducer, the control circuit being arranged to operate
the first transducer and to generate a signal indicative of the
turbidity of the fluid in response to signals received from the
receive transducer.

REFERENCES
The prior art relied upon by the Examiner are:

However, we also note that the Examiner included claim 29 in the
obviousness-type double patenting rejection, discussed later in this decision.
Non-Final Act. 3–5, 16.
Appeal 2021-000182
Application 16/427,836
3
Name Reference Date
Hach US 3,849,002 Nov. 19, 1974
Leighton US 4,740,709 Apr. 26, 1988
Alcorn US 2016/0335875 Al Nov. 17, 2016
Kersey US 2014/0318225 Al Oct. 30, 2014
Gysling US 2004/0194539 Al Oct. 7, 2004

REJECTIONS
Claims Rejected 35 U.S.C. § Reference(s)/Basis
23–42 Double Patenting copending Application No.
15/741560
23, 24, 37, 38, 41,
42
103 Hach, Leighton
25, 26, 31–33, 35,
36, 39, 40
103 Hach, Leighton, Alcorn
27, 28, 30 103 Hach, Leighton, Alcorn, Kersey
34 103 Hach, Leighton, Alcorn, Gysling

OPINION
Double Patenting Rejection
The Examiner provisionally rejects claims 23–42 on the ground of
nonstatutory double patenting as being unpatentable over claim 1–6, 8, and
10– 22 of copending Application No. 15/741,560. Non-Final Act. 3.
Appellant does not appeal this rejection. See Appeal Br. 5 (“The filing of a
terminal disclaimer is being deferred pending a decision of this appeal.”).
We summarily affirm this double patenting rejection.
Appeal 2021-000182
Application 16/427,836
4
Obviousness Rejection of Claim 233
We review the appealed rejection for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Cf. Ex parte Frye, 2010 WL 889747, *4 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After having considered
the evidence presented in this Appeal and each of Appellant’s contentions,
we are not persuaded that reversible error has been identified, and we affirm
the Examiner’s § 103 rejection for the reasons expressed in the Non-Final
Office Action and the Answer. We add the following primarily for emphasis.
In rejecting claim 23 over Hach and Leighton, the Examiner finds that
Hach teaches all limitations except that Hach does not explicitly teach a first
transducer “arranged to transmit ultrasonic signals” and relies on Leighton
for the teaching. Non-Final Act. 7. Specifically, the Examiner finds that
Leighton teaches “alternative sensors which can be used in the density or
turbidity sensors such as ultrasonic detection.” Id. (citing Leighton 5:6–38).
The Examiner reasons that a skilled artisan would have found it obvious “to
use an ultrasonic detection methodology of Leighton into Hach in order to
provide improved measurement of properties of liquids without interference
from bubbles hence improving overall accuracy of the system.” Id.
(emphases removed).
Appellant does not dispute the prior art teachings or the Examiner’s
rationale to support the rejection and argues only that the Examiner

3 Appellant does not separately argue any other claims. See Appeal Br. 5–10.
All claims stand or fall together with claim 23. See id.; see also 37 C.F.R.
§ 41.37(c)(1)(iv).
Appeal 2021-000182
Application 16/427,836
5
“assumes that the ultrasonic transducer and receiver would have the same
positions as Hach’s light emitter and light receiver” without providing “any
explanation for why the source and sensor for the ultrasound based sensor
would have the same position as the source and sensor for the light based
sensor.” Appeal Br. 9
Appellant’s argument is unpersuasive because it does not identify
error in the Examiner’s findings and rationale in support of the rejection.
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). In
this case, Appellant does not address the Examiner’s rationale to combine
the prior art teachings. To the extent that the Examiner’s proposed
combination “assumes that the ultrasonic transducer and receiver would
have the same positions as Hach’s light emitter and light receiver” as
Appellant argues (Appeal Br. 9), Appellant does not adequately explain why
such a proposed combination is in error or beyond an ordinary artisan’s
reach. See KSR, 550 U.S. at 417 (“[I]f a technique has been used to improve
one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.”).
Appellant’s argument that Figure 4 of Leighton illustrates an
ultrasonic source and sensor being “in direct line of sight with one another,
as opposed to having a perpendicular orientation as shown for the light
based sensors in the primary reference” (Appeal Br. 9–10) is unpersuasive
for at least two reasons. From the outset, the Examiner finds (Non-Final Act.
7) – and Appellant acknowledges (Appeal Br. 9–10) – that Hach teaches the
Appeal 2021-000182
Application 16/427,836
6
limitation “the receiver transducer has a receiving surface which is parallel
to a propagation direction of the first ultrasonic wave” as recited in claim 23.
The Examiner’s rejection, therefore, is based on the teaching of Hach for
this particular limitation. All of the features of Leighton need not be bodily
incorporated into Hach and the skilled artisan is not compelled to blindly
follow the teaching of one prior art reference over the other without the
exercise of independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp.,
733 F.2d 881, 889 (Fed. Cir. 1984). Moreover, we note that the Examiner
points out that Leighton provides that “‘the sensor can be at any angle,
including right angles, to the signal scattering to be measured’ and discloses
several embodiments including the embodiment shown at Figure 5,” which
illustrates an arrangement meeting the claim limitation at issue. Ans. 4
(citing Leighton 3:39–43, 6:54–62, Fig. 5), 6 (citing Leighton Figure 5).
Appellant does not respond to these findings and no reversible error has
been identified therein.

CONCLUSION
The Examiner’s rejections are affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
23–42 Obviousness-Type
Double Patenting
based on
copending
23–42
Appeal 2021-000182
Application 16/427,836
7
Application No.
15/741560
23, 24, 37,
38, 41, 42
103 Hach, Leighton 23, 24, 37,
38, 41, 42

25, 26, 31–
33, 35, 36,
39, 40
103 Hach, Leighton,
Alcorn
25, 26, 31–
33, 35, 36,
39, 40

27, 28, 30 103 Hach, Leighton,
Alcorn, Kersey
27, 28, 30
34 103 Hach, Leighton,
Alcorn, Gysling
34
Overall
Outcome
23–42

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED